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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual
situation you find yourself in. The information posted on this site is for
general information only, is based on |
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Question: |
Can I Sue For Stress At
Work? |
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Answer: |
Everybody encounters a degree of stress at work, and arguably
stress in moderation can be a positive thing. Few people would therefore ever
want to bring a claim in relation to occupational stress, though such claims
do arise. Constructive Unfair Dismissal: If there is an excessive amount of stress at work, whether
it is due to bullying, or an excessive work load, or targets, one remedy may
be to resign claim constructive unfair
dismissal. However Employment
Tribunals can only make awards for financial losses, and not injury to
feelings or psychiatric injury. Stress Related to Unlawful Discrimination: If the stress suffered is related to unlawful
discrimination (race, sex, disability, religious belief, sexual orientation and
from October 2006 age) then it will also be possible to claim injury to feelings. There is
an overlap with a personal injury claim for psychiatric injury. This has the
advantage for the employee over a negligence claims (see below) in that the
employee does not have to establish the test of ‘foreseeability’ for such an
injury. In one case, Essa v Laing Ltd [2004] Mr Essa suffered discrimination on racial
grounds when a colleague referred to him in insulting and derogatory terms.
As a result he suffered from serious psychological depression. The Employment
Appeals Tribunal held that all that was necessary for recovery of
compensation was a direct causal link between the discrimination and the psychiatric
injury suffered. The Court of Appeal agreed,
but it appears a different test could apply if there was no
intentional harassment. Personal
Injury Claim for the Tort of Negligence: I am not a
personal injury lawyer, and my knowledge of this field is limited. However: In Sutherland
v Hatton 2002 the Court of Appeal gave detailed guidance on the issue of
when an employee's psychiatric injury is reasonably foreseeable, stating
amongst other points that an employer should be able to assume that an employee
can withstand the normal pressures of a job unless the employer knows of some particular problem. The
indications of impending harm to health must be sufficiently clear for any
reasonable employer to realise that he should do something about it. Signs of
stress in a worker must have been obvious to the employer for the worker to
succeed in a stress related claim. An employer who offers a confidential
counselling service is likely to have a complete defence to a stress related
claim by a worker. An employer can usually assume that an employee can
withstand normal job pressures (unless he knows of a particular problem or
vulnerability) and the onus is normally on a worker to complain about stress
and to bring it to the attention of the employer. There is no breach of duty
in allowing a willing worker to continue in a stressful job if the only
alternative is dismissal or demotion. In
the 2004 case House of Lords in Barber
v Somerset County Council the House of Lords approved Sutherland but
emphasized that the overall test is still 'the conduct of the reasonable and
prudent employer, taking positive thought for the safety of his workers in
the light of what he knows or ought to know'. For example in the 2005 case of Hone –v- Six
Continents Retail Ltd in the Court of Appeal an employee with an
'excessive workload' won his stress related claim, because the psychiatric
injury had been reasonably foreseeable by his employer which had not taken
reasonable steps to prevent the injury. In that case Mr. Hone had complained
about working some 90 hours a week, of being tired, and had asked for an
assistant. He ended up collapsing at work. Six Continents Retail had
disregarded the Working Time Regulations which state that the employer should
ensure that the employee does not work more than 48 hours per week (as
averaged over a 17 week period). This kind of claim remains the exception rather than
the norm, and someone getting signed off with stress for a fortnight is still
unlikely to have a psychiatric injury. However employers would be wise to
promptly review the system of working of anyone who complains of stress at
work, particularly if they are also working excessive hours. In Hartman v South Essex Mental Health and
Community Care NHS Trust, [2005] Court of Appeal it was held that
liability for psychiatric injury caused by stress at work is in general no
different in principle from liability for physical injury; and it is
foreseeable injury flowing from an employer’s breach of duty which gives rise
to this liability so the mere fact that an employee suffered stress at work
and that the employer was in breach of duty in allowing that to occur does
not mean that the employer is liable to the employee. Each case must be
determined on its own facts and merits. The guidelines laid down by the House
of Lords in Barber v Somerset County Council HL 2004 ICR 457 and by the Court
of Appeal in Sutherland v Hatton CA 2002 ICR 613 are both relevant and useful
but they are guidelines not strict rules. In the 2006 Court of Appeal case of Pakenham-Walsh
v Connell Residential, Ms
Pakenham-Walsh, suffered a psychiatric injury after working 52.5 hours per
week over a five-month period, without proper breaks or adequate support,
although she had worked the hours voluntarily and had not complained about
stress levels. The Court of Appeal held that psychiatric injury was not
reasonably foreseeable: Ms Packenham-Walsh’s work was not intellectually or
emotionally demanding, she had not gone sick with work related stress and she
had no history of illness related to stress. She had voluntarily worked the
extra hours to earn more money. Although the employer had failed to comply
with its obligations under the Working Time Regs, that was not the deciding
factor. Last reviewed:
July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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